This was a detention review under Immigration and Refugee Protection Act,
subsections 82(1), 83(1) and 83(3).

One purpose of the Act is to maintain (or, in French, "garantir")
the security of Canadians and, to that end, Parliament has given the Solicitor
General and Minister of Citizenship and Immigration the power to declare a
permanent resident or foreign national inadmissible on security grounds by
referring a certificate to Federal Court. This was done in the instant case as
the Ministers were of opinion that the respondent, Charkaoui, belongs or
belonged to Osama bin Laden's terrorist network and accordingly constituted a
danger to Canadian security. The Ministers also signed an arrest warrant as he
was either a national security danger or unlikely to appear at a proceeding or
for removal. The warrant was executed and Charkaoui remains in detention.

For the purposes of this detention review, the Court discharged its onerous
duty by following both the parameters imposed by the legislation and the
interpretation of the role of designated judge provided by this Court in Ahani
v. Canada, [1995] 3 F.C. 669 and sustained by the Court of Appeal. At the
hearing, the Ministers called but one witness; respondent filed 14 affidavits,
of which 7 affiants were cross-examined. Following the hearing, certain
ministerial representatives were examined in the absence of respondent and his
lawyer, as is authorized by Act, section 78. At that time, certain additional
protected information furnished by the Ministers was clarified. This
information could not be disclosed to respondent.

The issue for determination was whether, in view of Charter, sections 7, 11
and 15 and Act, subsections 83(1), (3), respondent's detention should be
continued.

A CSIS officer gave testimony regarding the Al-Qaeda terrorist network led
by Osama bin Laden. Up to 100,000 persons have been trained by that
organization. Canada was specifically targeted in a statement made by Osama bin
Laden in November 2002. Under cross-examination, the officer admitted that he
did not know whether respondent was an Al-Qaeda member.

Witnesses called for respondent testified as to his outrage at the September
11, 2001 terrorist attacks, that he never displayed violent conduct or
advocated terrorism as a means of change and appeared to be a man who favoured
peace and respect for human rights.

In reviewing the ministerial action, the designated judge is not to look for
proof of the existence of the facts but rather to analyze the proof as a whole
while asking himself whether it is sufficient for a person to have a reasonable
belief that there is a danger to national security or the safety of any person
or that the respondent will avoid the procedure or removal. While not at the
level of preponderance of probabilities, the standard must tend toward a
serious possibility of the existence of facts based on reliable and justifiable
evidence. The Court could not accept respondent's argument, that the Minister's
evidence had to establish a definite probability that the person would commit
the terrorist activities.

Even so, the designated judge must be curious, concerned by what is advanced
and maintain a sceptical attitude in conducting a critical review of the facts.
He must verify the human, technical and documentary sources, their reliability
and the truth of what they may relate. He must seriously test the protected
documentation and information. In addition, he must analyze the evidence,
taking into account the danger to national security.

Held, respondent's detention continued to be justified.

An analysis of the evidence raised certain concerns and worries that were at
the very heart of this case. The Ministers explained that "bin Laden has
advised his supporters to blend in with Western society and to prepare
terrorist attacks". In the Ministers' opinion, respondent is a member of
the bin Laden network and would have been trained in such areas as: operating
rocket-propelled grenade-launchers, sabotage, urban combat and assassination.
Furthermore, respondent practised karate and martial arts. It was noteworthy
that one of those who participated in the hijacking of American Airlines Flight
93 had taken martial arts training in preparation for September 11. In
addition, the Ministers associated respondent with a bin Laden network sleeper
agent. According to the CSIS witness, that is a term that applies to both
terrorism and espionage and such an agent is trained and then sent back to his
country and told "Go back to your usual life, act as if nothing is
happening . . . And then one of these days . . . you will
get a message . . . and that's the time to do what we want you to do".
The sleeper agent may be activated to do something in the country where he has
been living or to travel to some other country to mount an attack.

The Ministers' findings, that respondent represents a danger to national
security, were very serious, so it was up to respondent to present some
evidence that challenged that of the Ministers. It was important to note, in
considering the testimony of respondent's witnesses, that a period of his
life--from 1992 to the end of that decade--was, in part, unaccounted for. Even
one of respondent's witnesses, Mr. Ouazzani, acknowledged that he had been
worried and suspicious about respondent's 1998 trip to Pakistan (supposedly to
study the Muslim religion in preparation for writing a book). Unlike
respondent's witness, the Court was not satisfied by respondent's explanation.
Nor had respondent addressed the Court's concern over his contacts with five
named individuals. Respondent's evidence failed to alleviate these concerns.

Counsel sought respondent's release on conditions and bail but, since the
Court concluded that a danger remained, that was not considered. Nor was the
applicability of Charter, paragraph 11(e) to this type of case decided.
That provision applies in the criminal law context while this proceeding was in
respect of immigration law. Finally, relief was not available under Charter,
sections 7 and 15. The Court noted that the proceedings herein, as provided for
by the statute, appeared to be consistent with Charter, section 7 principles of
natural justice. There was little discussion as to the applicability of
Charter, section 15.

Finally, as to whether the publicity surrounding his arrest and these
proceedings would neutralize the danger, counsel for the Ministers said that,
as a sleeper agent, the respondent could still be pressed into active service
if so required.

J. C. Luc Cadieux and Daniel Latulippe for
Minister of Citizenship and Immigration.

solicitors of record:

Doyon & Montbriand, Montréal, for Adil
Charkaoui.

Deputy Attorney General of Canada for Solicitor
General of Canada and Minister of Citizenship and Immigration.

The following is the English version of the reasons for order and order
rendered by

Noël J.:

INTRODUCTION

[1]Pursuant to a warrant for the arrest and detention of Mr. Adil Charkaoui
(the respondent) signed by the Minister of Citizenship and Immigration and the
Solicitor General of Canada (the Ministers), duly executed on May 21, 2003, the
designated judge has an obligation to commence a review of the reasons for the
continued detention. Having reviewed the record and held a hearing at which the
respondent was heard through witnesses and his counsel, I will explain in the
following paragraphs the results of the review of the reasons for the detention,
pursuant to subsections 83(1) and 83(3) of the Act [Immigration and Refugee
Protection Act, S.C. 2001, c. 27].

CONTEXT

[2]One of the purposes of the Act is to maintain (in the French
version: garantir) the security of Canadians (see paragraph 3(1)(h)
of the Act). Given this overriding objective, Parliament has provided some
tools to secure this result. One such tool is giving the Ministers mentioned
above the power to declare a permanent resident or foreign national
inadmissible on grounds of security by referring a certificate duly signed to
that effect to the Trial Division of the Federal Court (see subsection 77(1) of
the Act).

[3]In the case at bar, such a certificate was signed on May 16, 2003 and
subsequently referred to the Federal Court of Canada. The Ministers concluded
that the respondent should be declared inadmissible because in their opinion he
was or is a member of the Osama bin Laden network, an organization that
engages, has engaged or will engage in acts of terrorism and that as such, the
respondent is engaging, has engaged or will engage in terrorism and that
consequently the respondent constitutes, has constituted or will constitute a
danger to the security of Canada (see paragraphs 34(1)(c), (d)
and (f) of the Act).

[4]The reasonableness of the certificate will therefore be assessed by the
designated judge (see section 78 and subsection 80(1) of the Act). However, the
respondent's counsel has already stated that she will be raising the issue of
the constitutional validity of the entire procedure surrounding the certificate
and the verification of its reasonableness, along with the continuation of the
detention.

[5]However, within the framework of the powers assigned by Parliament, and
for the purpose of maintaining the security of Canadians, the Ministers also
signed, on May 16, 2003, a warrant to arrest the respondent, being of the
opinion that they had reasonable grounds to believe that he is a danger to
national security or to the safety of any person or is unlikely to appear at a
proceeding or for removal (see subsection 82(1) of the Act). The arrest warrant
was executed on May 21, 2003 and the respondent has since been in detention.

[6]As a designated judge, within 48 hours of the detention, I commenced the
review of the reasons for the respondent's arrest and continued detention and
on May 30, 2003 I provided him with an opportunity to be heard in this regard
(see paragraph 78(i) and subsection 83(1) of the Act). At the
commencement of the hearing the respondent, through his counsel, requested a
postponement to July 2, 2003 for a duration of two days in order to prepare for
the hearing, and this was granted.

[7]To gain a clear understanding of the Ministers' position in regard to
both the certificate and the continued detention, I reviewed the documents on
which the certificate and the arrest warrant are based and I held a hearing in
the absence of the respondent and his counsel (see paragraphs 78(d) and
(e) of the Act). I identified the information the disclosure of which
would not infringe national security or the safety of any person, bearing in
mind the importance of sufficiently informing the respondent of the
circumstances on which the certificate and the continued detention are based. I
also asked that the information be conveyed at the earliest opportunity, which
was done on May 26, 2003 (see paragraphs 78(g) and (h) of the
Act). I am satisfied that in assuming this onerous duty I have taken full
account of the parameters imposed by Parliament and the interpretation of the
role of the designated judge developed by the Federal Court (see Ahani v.
Canada, [1995] 3 F.C. 669 (T.D.), at page 681, upheld by the Court of
Appeal (1996), 37 C.R.R. (2d) 181 (F.C.A.); leave to appeal to the S.C.C.
refused, [1996] S.C.C.A. No. 496). And I continue to be vigilant as to the
possibility of giving the respondent additional information according to the
circumstances.

[8]The hearing concerning the continued detention was held at
Montréal on July 2 and 3, 2003. The Ministers, taking into account the
national security limitations imposed by Parliament, called one witness. The
respondent, in return, filed seven affidavits with the consent of counsel for
the Ministers and called seven witnesses. A summary of the evidence at the
hearing follows. Counsel for the respondent stated that she considered her
evidence incomplete since the immigration file on the respondent had been
delivered to her with several exclusions. On behalf of the respondent, she has
filed a complaint with the Privacy Commissioner concerning these exclusions and
she is awaiting the results. She also stated that she would have liked to have
called the investigators of the Canadian Security Intelligence Service (the
CSIS) to testify concerning certain interviews with the respondent but that she
did not know their names. It is common knowledge that the names of CSIS
employees may be protected by section 18 and the oath of secrecy of the Canadian
Security Intelligence Service Act, R.S.C., 1985, c. C-23 (the CSIS Act),
unless these names become public or other circumstances so warrant. I suggested
to the respondent's counsel that if the respondent could identify these
individuals by their names through an affidavit, I would then see to it that
the necessary steps were taken if applicable, subject to the submissions by the
Ministers. The respondent's counsel declined the offer and asked me to decide
as to the continued detention on the basis of the evidence as presented.

[9]Following the hearing, I examined some representatives of the Ministers
at a hearing in the absence of the respondent and his counsel, as is my general
authority under section 78 of the Act. Likewise, I took advantage of this
opportunity to clarify certain points concerning some additional protected
information supplied to the Court by the Ministers. In the hearing held at
Montréal, I informed the respondent of the holding of this ex parte
hearing at Ottawa and the receipt of the additional information. The
respondent's counsel restated her objection to this procedure. This additional
information shall nevertheless remain inaccessible to the respondent and his
counsel for reasons of national security. However, I am reviewing some aspects
of this evidence.

ISSUE

[10]The only issue to be determined at this stage is the following:
"Should the respondent continue to be detained, under sections 7, 11 and
15 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44] (the Charter) and subsections 83(1) and (3) of the
Act, in view of the available evidence and information?"

SUMMARY OF THE EVIDENCE HEARD AT THE HEARING

[11]The testimony at the hearing began with the examination of a CSIS
officer who, for reasons of security and anonymity, is identified only by his
first name, Jean-Paul. He has been working at the CSIS for 13 years. He is at
present deputy chief of investigations into Islamic and Sunni terrorism.

[12]Jean-Paul testified primarily about the Al-Qaeda terrorist network led
by Osama bin Laden. He explained the origin of the network and the recruitment
and training of its members. Among other things, he stated that between 50,000
and 100,000 persons have passed through the training camps since 1980. He also
informed the Court that Canada had specifically been targeted and directly
threatened in a statement made by Osama bin Laden in November 2002. Jean-Paul
also described in a general way Canada's efforts to protect itself against
terrorism. However, he was unable to disclose the CSIS investigation practices.

[13]On cross-examination, the witness acknowledged that he is not personally
responsible for the respondent's case, and that, based on his knowledge of the
file, he was unable to state that the respondent is a member of the Al-Qaeda
terrorist network.

[14]The evidence presented by the respondent's counsel consists of 14
affidavits, of which 7 affiants were cross-examined. The seven other statements
were filed on consent, without cross-examination. I propose to discuss the
witnesses who were cross-examined first, and then to summarize the other
affidavits.

[15]The first person to testify in favour of the respondent was Mr. Larbi
Ouazzani. He was born in Morocco in 1953 and has been a Canadian citizen since
1999. He is currently working full time as an assembler of aircraft components
at Bombardier Aéronautique. Mr. Ouazzani has known the respondent for
about three and a half years, since the respondent's wife is the first cousin
of Mr. Ouazzani's wife.

[16]Although Mr. Ouazzani admitted he did not have a very close relationship
with the respondent, he nevertheless offered to post bail of up to $15,000. In
his testimony, he was able to tell of a discussion they had about the terrorist
attacks of September 11, 2001 not long after that incident. He said he had
observed the outrage and obvious disagreement of the respondent concerning the
occurrence of this atrocity.

[17]To demonstrate his support to the respondent, Mr. Ouazzani went to visit
him in Rivière-des-Prairies prison. They discussed, among other things,
the fact that the respondent had been questioned by CSIS agents on many
occasions and had been intercepted by FBI agents during a stopover in New York.

[18]However, what drew my attention to this testimony, as I report in my
analysis, is the fact that Mr. Ouazzani asked the respondent the purpose of his
trip to Pakistan. It seems to me that Mr. Ouazzani was concerned by the fact
that he did not know the respondent had made a trip to Pakistan and wondered
about the reason for such a trip.

[19]The other two witnesses had taught the respondent in the context of his
master's degree in education (Diplôme d'études supérieures
spécialisées en éducation, option didactique--Graduate
studies in education, technical option). The first, Ms. Marie McAndrew, a
Canadian citizen, has been an associate professor in the Faculty of Education
Sciences at the University of Montréal since 1991, incumbent of the
chair in ethnic relations since June 2003, director of the research group on
ethnicity and adaptation to pluralism in education since 1993, and she teaches
at various levels in the University, including graduate studies.

[20]During the Winter 2003 session, Ms. McAndrew was responsible for a
multidisciplinary seminar on [translation] "Education and construction of
ethnic relationships". The respondent was one of the 15 students enrolled
in this 45-hour seminar. Ms. McAndrew also knows him because she met with him
twice while he was considering working on a directed study under her
supervision. The contemplated topic was the treatment of the Arab and Muslim
world in Quebec's course material. However, this topic was not yet confirmed.
Ms. McAndrew noted that the respondent was concerned with and critical in
regard to the integration of immigrants, particularly young Islamic Arabs in
Quebec. She says he had firm opinions but that he was able to qualify his ideas
in the course of discussions. Given his knowledge, Ms. McAndrew was insistent
on making a distinction between a radical or terrorist individual and a person
having activist opinions and concerns about integration. In her view, a
terrorist would not have the open-mindedness of the respondent. Also, rather
than take the university courses chosen by the respondent, he would have opted
instead for relatively "low profile" courses.

[21]Ms. Patricia Lamarre, a Canadian citizen, is an assistant professor at
the University of Montréal. She has known the respondent since April
2002, when he was one of her students in the course [translation] "From
didactics to a pedagogy of pluralism". Among the themes discussed in this
course were those pertaining to the role of the schools in the promotion of
societal openness in an effort to counter stereotypes and discrimination. Ms.
Lamarre testified, as had Ms. McAndrew, that the respondent participated
actively in the discussions and that his opinions were imbued with hope that
Muslims could cohabit peacefully with the other groups in Montréal. She
also stated that the respondent expressed hope and confidence in education and
the schools as a means of promoting changes in the integration of immigrants.
Ms. Lamarre considers him a cultivated man who is respected in his community.
Both teachers maintain that the respondent has never in any way displayed any
violent conduct, nor has he advocated the use of violence or terrorism as a
means of change.

[22]The respondent's fourth witness, Mr. Kamal Benkirane, a native of
Morocco and permanent resident in Canada since April 1, 2001, is a university
colleague of the respondent. The two were students in the course [translation]
"Education in today's world" at the University of Montréal and
have known each other since September 2002. Although their relations were
limited primarily to the classroom and to discussions related to the course
content, the two men had once discussed on the telephone terrorist attacks
occurring in Casablanca in May 2003. Mr. Benkirane further testified that the
respondent saw these attacks as a violation of the dignity of Muslims and
Moroccans, had expressed his opposition to terrorism and had denounced the
attack. Mr. Benkirane also told the Court that the respondent telephoned him
from prison to ask him to get students at the university to sign petitions
emphasizing their disagreement with his arrest. Without inquiring further about
the scope and truthfulness of the allegations against the respondent, Mr.
Benkirane agreed to help him and to circulate the petitions.

[23]As her fifth witness, the respondent's counsel called another colleague
from the respondent's class. Ms. Ligia Beatriz Nino, a native of Colombia, has
lived in Canada since 1988 and obtained her Canadian citizenship in May 1997.
She has known the respondent only since March 2003 when they were both
registered in the courses [translation] "Adult educator skills" and
"Languages didactics". She was not acquainted with the respondent's
private life outside the university context. She says she spoke to him on the
telephone after his arrest simply to greet him and give him some moral support.
Ms. Nino also testified that she saw him as a man in favour of peace and
respect for human rights, a statement she bases on the group discussions in the
classrooms.

[24]Mr. Samir Benshaib, a long-time friend of the respondent, was then
called as a witness. Mr. Benshaib and the respondent lived in the same
neighbourhood of Casablanca when they were children in Morocco. They played
together, were enrolled in the same secondary school and attended the same Tae
kwon do club. However, in 1992 they lost contact when they began university.
They did not see each other again until 2001, first in Morocco when the
respondent was travelling and the second time in Canada, when Mr. Benshaib
moved to Montréal. They had since become good friends, and Mr. Benshaib
considers the respondent as a brother. While the respondent helped Mr. Benshaib
settle in Montréal and get a car for himself, Mr. Benshaib gave him a
hand at the pizzeria when he was having some problems.

[25]The respondent telephoned Mr. Benshaib from prison on one occasion. Mr.
Benshaib says they talked about the allegations on the telephone. Without going
too far into details, they had simply discussed the reason for his arrest, in
the belief that it was unthinkable that such allegations would be brought
against the respondent. Mr. Benshaib characterizes these allegations as
ridiculous while pointing out that the respondent is a good person who likes to
help everyone.

[26]The final witness was Mr. Samir Ezzine, a native of Morocco and Canadian
citizen since 1993. He and the respondent have known each other since the
summer of 2001. The respondent wanted to purchase a pizzeria and Mr. Ezzine,
having already owned a pizzeria, was able to help him in his research. It was a
friend of the respondent who had contacted him. Mr. Ezzine initiated the
respondent in the operation of his business and in particular helped him with
the cook's work. They had met subsequently on many occasions at the mosque.

[27]Mr. Ezzine was interrogated by the CSIS on three occasions. In 1997, he
was questioned about his business, about Morocco and in regard to Mr. Saïd
Atmani. The other two interrogations were held after the attacks of September
11, 2001. He was first asked if he had heard of people who had crossed the Canada-U.S.
border. On a third interview, the CSIS agents proposed that he work for them, a
proposition that was refused.

[28]In his affidavit, Mr. Ezzine states that he knows Mr. Abousfiane
Abdelrazik and Mr. Raouf Hannachi. He says these two men left Canada in
complete legality because they were being constantly harassed by CSIS agents.
At the hearing he added that Mr. Abdelrazik's wife has died and that he left
his children in Canada to go back to Sudan. Regarding Mr. Hannachi, whom he has
known for four years, Mr. Ezzine states that he left Canada in October 2001 to
return to Tunisia where he was allegedly tortured. Mr. Ezzine stated that he
has not seen Mr. Abdellah Ouzghar for five years. Finally, Mr. Ezzine stated
that the respondent knew Mr. Abdelrazik and Mr. Raouf Hannachi enough to shake
hands when they crossed paths.

[29]Another important fact on which Mr. Ezzine testified is the trip to
Bosnia he made in 1996. He claims he left for about three months to go and
assist victims of the war. He says he paid for his trip from his own resources,
that his airplane flight cost him $600 and that he spent about $1,000 to buy
food and clothing to donate to the victims. At the time, Mr. Ezzine was working
in a restaurant in Montréal and earning a minimum wage of $7 an hour.
Finally, during his trip, he did not make any friends and did not maintain any
contact, he says.

[30]The affidavits filed without cross-examination are those of the
respondent's father, his wife, the university professor Ms. Paret, the martial arts
teacher, a former employee of the pizzeria and another of the respondent's
friends. The respondent's father, Mr. Mohamed Charkaoui, states in his
affidavit that he raised his son in accordance with the precepts of their
religion, inculcating him with the values of respect, work, tolerance and
faith. He describes the respondent as being consistently curious, eager for
knowledge and a lover of travel and literature. He says his son is athletic and
has practised the martial arts since he was a teenager. He notes that from his
birth to the arrival of his wife in Canada in February 2000, his son always
lived under the same roof. He also says he has [translation] "never
. . . heard intolerant remarks from the mouth of [his] son Adil,
still less hateful remarks or remarks tending to support violence or terrorism
as ends to advance some cause." and that he has [translation]" never
noticed any strange conduct in [his] son, and his day-to-day activities consist
of studying, training, working and taking care of his family."

[31]The respondent's wife, Ms. Fouzia Ouahid, met the applicant
[translation] "several years" ago for she was his French teacher in
Morocco. In 1997 they became engaged and in August 1998 they married. In her
affidavit, she tells of the trip to Morocco that she made with the respondent
and explains the events surrounding the searches and interrogations at the
Dorval and New York airports and the replies she gave to the FBI agents. She
explains that her husband complained that he was being questioned about other
persons and that he was asked to work for the CSIS. More generally, she says
she needs her husband to help her in the home since she is about to give birth
to their second child and that in addition she was injured as a result of an
automobile accident.

[32]Ms. Christine Paret, a professor in the faculty of education of the
University of Montréal, says she has known the respondent since
September 2002 when he was registered in her didactics of textual grammar
course. She says she found the respondent an active participant who seemed to
her to be very intelligent and open to cultural differences.

[33]Mr. Philippe Gélinas, the martial arts teacher, attests that he
has known the respondent since he enrolled in the Académie d'Arts
Martiaux Culturels Gélinas, about two years ago. He says the respondent
was not a novice when he enrolled, but that he wanted to improve so he could
give some courses. The respondent came to take some courses and practised two
to three times a week for an hour and a half each time. He notes that Mr.
Charkaoui was not an aggressive student and that their topics of conversation
normally dealt with the martial arts and the respondent's life in
Montréal. However, he reports that the respondent had told him previously
that he had been arrested in a plane by FBI agents and that about a year ago
the CSIS agents had gone to see him, that they had told him he was a terrorist
and that they wanted him to work for them. Mr. Gélinas says the
respondent told him he could not work with the CSIS because he is not a
terrorist.

[34]The respondent's counsel put in evidence the affidavits of Mr.
Abderrahmane Kherour and Mr. Aziz Zahaoui. Mr. Kherour, a Canadian citizen, a
native of Algeria, is a former employee in the respondent's pizzeria. They have
known each other since July 2001, when he began working for the respondent. Mr.
Kherour states in his affidavit that in January 2002 he was questioned by a
CSIS agent who showed him a photo of an individual identified as Mr. Samir
Ezzine.

[35]Mr. Zahaoui, a Canadian citizen since 2001 and a native of Morocco, has
known the respondent since the middle of 1998 and considers him a friend. In
his affidavit, he explains that he was contacted several times by CSIS agents
who wanted to obtain information about the respondent and about Mr. Abdallah
Ouzghar and other persons in Montréal whom he knew. He says he told the
agents that the respondent was a student, that he engaged in sports, that he
looked after his business and his family. He says he never stated that the
persons he had to identify were terrorists. Mr. Zahaoui says he refused to work
as an informant but told the CSIS agents that he was prepared to inform on
anyone who would do harm in Canada.

THE ROLE OF THE DESIGNATED JUDGE ON A REVIEW OF THE REASONS FOR CONTINUED
DETENTION

[36]The designated judge, at the stage of reviewing the reasons for the
arrest warrant and the continued detention, must ask himself whether there is
any evidence in support of the Ministers' position that the respondent, since
the beginning of his detention, remains a danger to national security or to the
safety of any person or is unlikely to appear at a proceeding or for removal
(see subsection 83(3) of the Act). I note that Parliament has used the word
"or", which creates an alternative between one of the reasons cited.
Moreover, the designated judge, having given the respondent an opportunity to
be heard, must ask himself whether the evidence presented by the respondent
challenges the evidence in support of continued detention, if any. In doing so,
he must consider all the evidence of the parties (including that presented in
the absence of the respondent). The initial onus is therefore on the Ministers,
although it may shift to the respondent if the Ministers' evidence is
sufficient. Where applicable, the respondent must in turn satisfy the
designated judge that the continued detention is not justified.

[37]When signing the arrest warrant, the Ministers assessed the danger to
national security or the safety of any person or the possibility that the
respondent would avoid the procedure or removal according to the reasonableness
standard. This is the standard of proof designated by Parliament. Needless to
say, the review of the ministerial action must be conducted according to the
same standard.

[38]This standard of proof was defined in immigration matters by the Federal
Court of Appeal in Attorney General of Canada v. Jolly, [1975] F.C. 216
(C.A.), per the former Chief Justice Thurlow, who wrote [at pages 225-226]:

. . . where the fact to be ascertained on the evidence is whether
there are reasonable grounds for such a belief, rather than the existence of
the fact itself, it seems to me that to require proof of the fact itself and
proceed to determine whether it has been established is to demand the proof of
a different fact from that required to be ascertained. It seems to me that the
use by the statute of the expression "reasonable grounds for
believing" implies that the fact itself need not be established and that
evidence which falls short of proving the subversive character of the
organization will be sufficient if it is enough to show reasonable grounds for
believing that the organization is one that advocates subversion by force, etc.
In a close case the failure to observe this distinction and to resolve the
precise question dictated by the statutory wording can account for a difference
in the result of an inquiry or an appeal.

[39]Thus, the designated judge is not to look for proof of the existence of
the facts but rather to analyze the proof as a whole while asking himself
whether it is sufficient for a person to have a reasonable belief that there is
a danger to national security or the safety of any person or that the
respondent will avoid the procedure or removal. Although it is not at the level
of the preponderance of probabilities, this standard must tend toward a serious
possibility of the existence of facts based on reliable and justifiable
evidence. To this effect, Mr. Justice Evans of the Court of Appeal wrote, in Chiau
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297
(C.A.), at paragraph 60:

As for whether there were "reasonable grounds" for the officer's
belief, I agree with the Trial Judge's definition of "reasonable
grounds" (supra, at paragraph 27, page 658) as a standard of proof
that, while falling short of a balance of probabilities, nonetheless connotes
"a bona fide belief in a serious possibility based on credible
evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216
(C.A.).

The standard of proof required to establish reasonable grounds for a belief
is a standard of proof that connotes "a bona fide belief in a
serious possibility based on credible evidence". See Chiau v. Canada
(Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at paragraph
60. It is not necessary for the Minister to establish either actual membership
in an espionage agency, or actual acts of espionage.

[41]The respondent's counsel attempted to persuade me that the Ministers'
evidence had to establish a definite probability that the respondent
would commit the apprehended activities, since according to the principles of
fundamental justice the release of an individual should be the norm and his
detention the exception. Taking into account the extracts from judgments referred
to above and national security concerns, I believe that the interpretation of
the standard proposed by Evans J.A. in Chiau, supra, is the most
appropriate one in the circumstances.

[42]This perception of the standard of reasonable grounds to believe is
essential to ensure national security. To this effect, the Supreme Court of
Canada, in Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, at paragraph 87, cited with approval Lord Slynn of the House
of Lords in Great Britain when he wrote (Secretary of State for the Home
Department v. Rehman, [2001] 3 W.L.R. 877 (H.L.), at paragraph 16):

It seems to me that, in contemporary world conditions, action against a
foreign state may be capable indirectly of affecting the security of the United
Kingdom. The means open to terrorists both in attacking another state and
attacking international or global activity by the community of nations,
whatever the objectives of the terrorist, may well be capable of reflecting on
the safety and well-being of the United Kingdom or its citizens. The
sophistication of means available, the speed of movement of persons and goods,
the speed of modern communication, are all factors which may have to be taken
into account in deciding whether there is a real possibility that the national
security of the United Kingdom may immediately or subsequently be put at risk
by the actions of others. To require the matters in question to be capable of
resulting "directly" in a threat to national security limits too tightly
the discretion of the executive in deciding how the interests of the state,
including not merely military defence but democracy, the legal and
constitutional systems of the state need to be protected.

[43]The designated judge must also examine the evidence and ask himself
whether there is a serious possibility of the existence of facts that might
lead someone reasonably to believe that persons other than the respondent were,
are or might be in danger owing to situations that might be created by the respondent
or whether there is a serious possibility of the existence of facts that might
enable a person reasonably to believe that the respondent would avoid the
procedure and/or the removal.

[44]In light of the foregoing, the designated judge, in his review of the
protected records and in the hearing in the absence of the respondent, must
nevertheless be curious, concerned by what is advanced, and maintain a
sceptical attitude with the objective of conducting a critical review of the
facts. He must verify the human, technical and documentary sources, their
reliability and the truth of what they may relate. To the degree possible, the
information must come from more than one source and must not be subject to an
imprecise interpretation. Moreover, the designated judge may examine witnesses
who can shed light on the protected information and documents. Where necessary,
he may question their interpretation of the facts and verify whether there are
not other possible interpretations that might tend to favour the respondent. In
a word, the designated judge must seriously test the protected documentation
and information. This is a demanding role, which must be fully performed given
the interests at stake.

[45]Furthermore, the designated judge must analyze the evidence taking into
account the danger to national security. He must ask himself what might
constitute such a danger. To this effect, the Supreme Court of Canada, in Suresh,
supra, defined as follows, at paragraph 90, what constitutes a danger to
the security of Canada:

These considerations lead us to conclude that a person constitutes a
"danger to the security of Canada" if he or she poses a serious
threat to the security of Canada, whether direct or indirect, and bearing in
mind the fact that the security of one country is often dependent on the
security of other nations. The threat must be "serious", in the sense
that it must be grounded on objectively reasonable suspicion based on evidence
and in the sense that the threatened harm must be substantial rather than
negligible.

[46]Having explained the role of the designated judge on a review of the
reasons for continued detention, I will now proceed to analyze the evidence by
the parties, the law and the submissions. Needless to say, I am unable to refer
to the protected documentation and information. However, I will attempt, on the
basis of the evidence presented publicly, to raise certain concerns and worries
that are at the very heart of this case.

ANALYSIS OF THE EVIDENCE CONCERNING THE CONTINUATION OR NOT OF THE
RESPONDENT'S DETENTION

[47]As stated in the content of the document entitled [translation]
"Summary of information given to the Minister for the arrest and detention
pursuant to paragraph 82(1) of the Act" (exhibit R-3), the Ministers have
reasonable grounds to believe that the respondent constitutes (1) a danger to
national security; (2) or a danger to the safety of any person; and (3) or that
he is unlikely to appear at a proceeding or for removal.

[48]To demonstrate the danger to national security and the safety of any
person, the Ministers describe the bin Laden network, its mission, some of its
members and certain activities. At page 4, they explain that:

[translation] bin Laden has advised his supporters to blend in with Western
society and to prepare terrorist attacks.

[49]Furthermore, with the same objective of demonstrating a danger to
national security and to the safety of any person, the Ministers refer the
reader to the training in Al-Qaeda camps, using as an example the experience of
Ahmed Ressam. He was given military training in such things as the handling of
handguns, machine guns and rocket-propelled grenade-launchers. He was
instructed in the manufacture of bombs from TNT and plastic explosives as well
as sabotage and urban combat operations and assassinations. In the Ministers'
opinion, the respondent is a member of the bin Laden network and has received
training similar to that of Ahmed Ressam.

[50]To add to the demonstration of danger to national security and to any
person, the Ministers link the respondent with violence and explain that he is
a karate and martial arts enthusiast, and add that (see page 5, exhibit R-3):

[translation] In the past, it has been observed that some individuals
involved with Al-Qaeda are devoted to the practice of karate and/or the martial
arts. In particular Ziard Jarrah, who was part of the group that hijacked
American Airlines Flight 93, had trained in the martial arts in preparation for
the September 11, 2001 operation.

[51]The Ministers expressly and unequivocally associate the respondent with
a sleeper agent in the bin Laden network and use Ressam's story as a typical
example.

[52]To this effect, the witness Jean-Paul, who testified in support of the
ministers' thesis, defined the notion of sleeper agent as follows:

[translation] A sleeper agent is an individual who has been trained in a
certain way. It's a term that applies both to terrorism and to espionage. So
we're talking about an individual who has been trained to operate in a country
in accordance with the needs of the organization that is directing him.

So, if he's a spy, he is a person who is capable of collecting intelligence,
sending messages and engaging in acts of sabotage, for example. In the case of
a terrorist, it would be an individual who has received, who would have
received a certain training enabling him to operate according to the needs of
the group.

So if the group needs an engineer, a person who is able to assemble, a kind
of explosives manufacturer, when all is said and done, someone who could
assemble explosive devices for the organization, he would be trained in that.
He is given the necessary courses and then sent back to his country of origin
and he is told: "All right. Go back to your usual life, act as if nothing
is happening. You don't tell anyone that you have taken those courses. And then
one of these days someone is going to come and see you, perhaps you will get a
message, a letter, an email, a telephone call and that's the time to do what we
want you to do quite simply."

So this person returns to his day-to-day existence and nothing happens until
they need him. Then that person could be activated to mount an action in the
country where he is or he might have to travel to a foreign country to mount an
attack.

[53]In regard to the public evidence of the Ministers concerning the
possibility that the respondent is unlikely to appear at a proceeding or for
removal, it is limited to the observation that he has some family in Canada but
that in reality he has few ties and could easily slip away for neither he nor
his wife is a Canadian citizen.

[54]In my opinion, the Ministers' findings and observations that the
respondent is a danger to national security and to the safety of any persons
are very serious and mean that the respondent must in turn present some
evidence that challenges that of the Ministers. This is the task he must assume
if he hopes to regain his liberty.

[55]The respondent presented some evidence that he is not a terrorist or
member of the Al-Qaeda network, that he is a good father, the father of a
two-year-old daughter and a child to be born at the end of the summer, and that
he is living peacefully with his wife and his parents, that he is a good
student in graduate studies at the University of Montréal, and that he
has never supported the terrorist acts for which the Al-Qaeda network has
claimed responsibility.

[56]As proof, the respondent put in evidence the testimony of his father,
his wife, some professors, colleagues in his class, a childhood friend, a
family acquaintance and a male friend. One of the witnesses, Mr. Ouazzani,
offered $15,000 in bail and to maintain contact to ensure compliance with any
terms that might be imposed should he be released on bail. His father, Mr. Mohamed
Charkaoui, in his affidavit, also offered bail in an undetermined amount and
contact with his son to guarantee the terms if necessary.

[57]With the exception of the father, the wife and the childhood friend, the
witnesses have known the respondent from the late 1990s to today. Although they
remained in contact by telephone or by mail, the wife was not with the
respondent from 1995 to February 2000, when she came and settled in Canada on a
visa (other than for a period in August 1998, at the time of their marriage).
The childhood friend lost contact with the respondent in 1992 and did not see
him again until January 2001. I note that of the 13 affiants, 10 have known him
since the late 1990s or early 2000, or for an even lesser time.

[58]There is therefore a period of life from about 1992 to the end of the
nineties that is unexplained in part.

[59]There is also a trip to Pakistan from February to July 1998, which is
explained by his father and his wife as a trip to study the Muslim religion as
part of a project to write a book on the Muslim religion in French. As a result
of the media coverage of this case, this trip aroused some concerns in Mr.
Ouazzani, a witness for the respondent:

[translation]

Were you concerned about that trip?

Yes, it was a matter of concern to me. I wanted to know, it worried me
. . . In other circumstances, it would be no more suspicious to
travel to Pakistan than to the United States. But when you put this whole story
in its context, you can't help being suspicious. And when you also put the
thing in what I have just explained to you, it becomes comprehensible. Do you
understand, My Lord?

[60]Although the witness stated that he was satisfied with the respondent's
explanations, I am not. The respondent would have everything to gain from
explaining this trip in detail. During a CSIS interview with the respondent on
February 27, 2001, it was noted that (see Tab 4, Vol. B, Record of
documentation concerning Adil Charkaoui):

[translation] Charkaoui said he had been sponsored to go and take a
five-month course in religions in 1998. According to the subject, this religion
course is divided into a number of components: course on the Koran; course on
Islamic culture; course on the customs of the Koran. Charkaoui said that this
five-month course was very beneficial to him and this deepening of the Muslim
religion enabled him to answer a number of existential questions. However,
Charkaoui himself indicated that he had had some bad experiences during this
stay in Pakistan in 1998. The subject indicated that once his course in
religion had ended, he was arrested twice within the territorial limits of
Pakistan; . . . .

In another meeting, on July 26, 2002, the CSIS investigators noted that (see
Tab 3, Volume B, Record of documentation concerning Adil Charkaoui):

[translation] . . . Charkaoui denied being in Afghanistan and
having made the Jihad there. He confirmed he had been in Pakistan to do some
studies in the Islamic religion in several cities of Pakistan, primarily in
Karachi. He noted that he had attended some madrassas in that country.

[61]It seems to me that for the purpose of clarifying this stay of close to
six months in Pakistan, the respondent could have had recourse to his passport,
his professors, the University or institution where he studied the Muslim
religion, etc. But nothing was done in this regard.

[62]Another concern appears to me to be what the Ministers claim are the
contacts the respondent has with certain individuals ("Summary of
information pursuant to paragraph 78(h) of the Act", Tab B, Exhibit R-3).
With the exception of the witness Mr. Ezzine, the evidence as adduced by the
respondent is largely silent in this regard. Again, I think the respondent
would facilitate his application for release if he were to address this concern.

[63]Taking into account the limitations imposed on me, I therefore identify,
inter alia, three significant concerns that have not been satisfactorily
addressed in the respondent's evidence:

- the respondent's life from 1992 to 1995 (in Morocco) and from 1995 to 2000
(in Canada), including the trips;

[64]Having clearly identified three concerns, I must note that I am unable,
from the respondent's evidence, to neutralize or alleviate them. The evidence
as presented is incomplete, insufficient, and does not answer all of the
findings made by the Ministers in concluding that the respondent, at the time
the warrant was signed, was a danger to national security or the safety of
anyone or that he would attempt to avoid the proceedings and/or removal.

[65]Having carefully reviewed the evidence of each party and having found
that at the time the warrant of arrest was signed, the Ministers had reasonable
grounds to believe that the respondent was a danger to national security or the
safety of any person or that he would attempt to avoid the proceedings and/or removal,
I consider that he still remains a danger for the reasons given above and that
the detention continues to be justified.

[66]There is provision in subsection 58(3) of Division 6 of the Act
(Detention and Release) for release with the posting of a guarantee for
compliance. This division applies through section 85 of the Act, which states
that in the case of an inconsistency between sections 82 to 84 and the
provisions of Division 6, sections 82 to 84 prevail to the extent of the
inconsistency. Thus, since sections 82 to 84 do not cover any terms that may be
linked to a release prior to the hearing on the certificate, a contrario,
that are not inconsistent on this specific point, subsection 58(3) may serve as
a base reference on release and the conditions therefor. The respondent,
through his counsel, asked that I release him on conditions and bail. Since I
have reached the conclusion that the danger still remains, which in itself is
just cause, I need not contemplate this possibility at this stage of the
proceedings. The danger remains and it is not a conditional release and bail
that will eliminate this danger at this time. Furthermore, I need not decide at
this point the applicability of paragraph 11(e) of the Charter to this
type of case. However, I will allow myself the following comment, that this is
a Charter provision that applies to the criminal law, while we are dealing here
with immigration law. The Supreme Court has already issued the following
caution in this regard (Blencoe v. British Columbia (Human Rights
Commission), [2000] 2 S.C.R. 307, at paragraph 88):

This Court has often cautioned against the direct application of criminal
justice standards in the administrative law area. We should not blur concepts
which under our Charter are clearly distinct.

[67]The respondent's counsel, in an attempt to persuade me to release him,
also asked that I consider sections 7 and 15 of the Charter. Again, I do not
think I should, at this stage, rule on this, in view of the conclusion I have
reached. However, I will add that the approach taken in this case, as
prescribed by the Act, appears to be consistent with the principles of natural
justice enshrined in section 7 of the Charter. I note that the respondent has
been given information that enables him to be sufficiently informed of the
circumstances, he has presented 14 witnesses, and his point of view was clearly
communicated in the submissions by his counsel (See Chiarelli v. Canada
(Minister of Employment and Immigration), [1992] 1 S.C.R. 711). Concerning
the argument based on section 15 of the Charter, there was very little
discussion on this and I think it will have its raison d'être during the
hearing on the constitutional validity of the certificate and the verification
procedure.

[68]During the submissions by one of the counsel for the Ministers, I asked
him whether the publicity resulting from the arrest and the proceedings would
not neutralize the danger. In response, I was told that the respondent would
revive his contacts and that, as a sleeper agent, he might go into action,
given his mission and his situation.

[69]At this stage, I continue to be concerned for the foregoing reasons.
Taking into account the evidence as a whole, I do not feel sufficiently
reassured to conclude that the danger is neutralized through the publicity
resulting from the arrest and the proceedings. I note that the respondent will
have an opportunity to submit new evidence pursuant to the statutory review
under subsection 83(2) of the Act.

[70]The Act is silent as to the right of appeal from the present
interlocutory decision, and I note that there is a statutory review of
continued detention under subsection 83(3) of the Act. Since I am uncertain of
the application of paragraph 74(d) of the Act, and wish to allow the
parties to assess the situation, if necessary, I am going to allow the
submission to me of one or more questions for purposes of certification within
15 days of this judgment, if that section applies to this case.

[71]The Ministers, through their counsel, did not ask for costs, so I need
not rule in that regard.

ORDER

THE COURT ORDERS THAT:

The respondent be continued in detention pursuant to subsection 83(3) of the
Act until the designated judge rules again in regard to the continuation of
detention under subsection 83(2) of the Act.